By Juliet Eilperin
Washington Post Staff Writer
Wednesday, May 7, 2008

WINSTON-SALEM, N.C., May 6 -- Highlighting an issue he plans to use aggressively in the general election campaign, Sen. John McCain on Tuesday decried "the common and systematic abuse of our federal courts by the people we entrust with judicial power" and pledged to nominate judges similar to the ones President Bush has placed on the bench.

The presumptive Republican presidential nominee said that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. "would serve as the model for my own nominees, if that responsibility falls to me," highlighting the gap between Republicans and Democrats on the question of who should sit on the Supreme Court. Both justices have established strong conservative records since Bush appointed them, and the appointment of one more conservative to the nation's highest court could tip the balance on issues such as abortion, discrimination, civil liberties and private property.

The two remaining Democratic candidates, Sens. Barack Obama (Ill.) and Hillary Rodham Clinton (N.Y.), opposed the nominations of Roberts and Alito.

"My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power," McCain told a crowd of several hundred at Wake Forest University's Wait Chapel, as he stood in front of nine American flags and mock-ups of the preamble to the Constitution.

Later in the day, he announced the formation of a conservative-leaning Justice Advisory Committee, which he said will counsel him on judicial appointments if he wins the presidency. The group, which will be chaired by former solicitor general Theodore B. Olson and Sen. Sam Brownback (R-Kan.), is a Who's Who of prominent conservative legal minds, with members including Princeton University professor Robert George and Rachel Brand, former assistant attorney general for the Office of Legal Policy.

"Here's what McCain was really telling the party base: If you liked George W. Bush's nominees, you're going to love the judges John McCain will put on the bench," said Kathryn Kolbert, president of People for the American Way.

Conservatives -- who have been frustrated by the fact that Bush has appointed 303 federal judges compared with President Bill Clinton's 372 -- were quick to praise McCain.

Edward Whelan, a former clerk to Justice Antonin Scalia who heads the Ethics and Public Policy Center, called the speech "very encouraging" and added: "McCain has drawn a clear line between his support for judicial restraint and Obama's promise to appoint liberal judicial activists." In a reference to Justice David H. Souter, who was appointed by Republican President George H.W. Bush but has staked out a liberal voting record on the court, Whelan added: "McCain has promised that his Supreme Court nominees will have 'a proven record of excellence in the law, and a proven commitment to judicial restraint.' In other words, no more Souters."

While McCain criticized the judgment of both Democratic candidates when it comes to voting on judicial nominees -- "It turned out that not even John Roberts was quite good enough for them" -- he reserved his sharpest attack for Obama, drawing applause from the audience.

"Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done," he said. "He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. . . . Apparently nobody quite fits the bill except for an elite group of activist judges, lawyers and law professors who think they know wisdom when they see it -- and they see it only in each other."

Obama spokesman Tommy Vietor countered: "Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves."

McCain made a point of noting that he had voted for President Clinton's two Supreme Court appointees, Stephen G. Breyer and Ruth Bader Ginsburg, "because I believed that they were qualified." He added: "Elections have consequences. One of the consequences is the president of the United States gets to name his or her nominees to the bench."

Staff writer Robert Barnes contributed to this report.